THIRD AMENDMENT TO
THE CONNECTICUT NATURAL GAS CORPORATION
OFFICERS RETIREMENT PLAN AND
DEFERRED COMPENSATION PLAN TRUST AGREEMENT
THIS AMENDMENT is made and entered into this 12th day of September,
1995, by and between CONNECTICUT NATURAL GAS CORPORATION, a Connecticut
corporation with its principal office in Hartford, Connecticut (hereinafter
referred to as the "Company") and FLEET BANK, N.A., a bank with trust
powers having a principal place of business in Hartford, Connecticut
(hereinafter referred to as the "Trustee"),
W I T N E S S E T H :
WHEREAS, by Agreement dated January 9, 1989 (the "Agreement"), the
Company and The Connecticut Bank and Trust Company, N.A. entered into an
Agreement entitled The Connecticut Natural Gas Corporation Officers
Retirement Plan Trust Agreement; and
WHEREAS, Fleet Bank, N.A. has succeeded to the trust business of The
Connecticut Bank and Trust Company, N.A., and is currently serving as
Trustee; and
WHEREAS, the parties entered into a First Amendment to the Agreement
dated August 5, 1993 which, among other things, renamed the Agreement; and
WHEREAS, the parties entered into a Second Amendment to the Agreement
dated February 17, 1995; and
WHEREAS, the parties reserved the right to amend the Agreement in
Article X, Section 10.1 thereof, subject to the conditions set forth
therein; and
WHEREAS, the Company wishes to amend the Agreement in the particulars
set forth below;
NOW, THEREFORE, the Company and the Trustee agree as follows:
1. The following new Section 4.4 is added to the Agreement:
"4.4 Notwithstanding any other provision of this Agreement to
the contrary, as soon as practicable following a Change of Control,
the Company shall calculate the maximum aggregate amount required
under the Plans to satisfy the liability to all Participants (and
beneficiaries) who may be entitled to payments under the Plans as of
the Change of Control and shall calculate an estimate of the expenses
reasonably likely to be incurred by the Trust from the date of
calculation until the termination of the Trust including the
Trustee's fees. Any such calculation shall be based upon the
recommendations of an independent actuary hired by the Company
utilizing reasonable actuarial assumptions. The aggregate of such
amounts for the Plans plus such additional amount as the Company
reasonably determines to be necessary to pay the anticipated expenses
of the Trust including the Trustee's fees is hereinafter referred to
as the "Maximum Amount Payable". The independent actuary shall
promptly furnish such calculation to the Company, and the Company
shall have the obligation to make contributions to the Trust and
shall make contributions to the Trust in cash, within three business
days of the receipt of such calculation, in an amount equal to the
excess (the "Excess"), if any, of the Maximum Amount Payable over the
then fair market value of the Trust Assets. As of each subsequent
valuation in accordance with Section 1.3 hereof, the independent
actuary hired by the Company shall make a similar calculation; and if
at any time following a Change of Control a valuation of the Trust
Assets occurs pursuant to this Agreement, and it is determined by the
independent actuary that an Excess shall exist, the Company shall
within three days of notice thereof contribute in cash such amount to
the Trust as is necessary to eliminate the Excess."
2. The following new Section 4.5 is added to the Agreement:
"4.5 The Board of Directors of the Company and the Chief
Executive Officer of the Company shall each have a duty to inform the
Trustee whenever a Change of Control has occurred. If any two
Participants notify the Trustee in writing that a Change of Control
has occurred, then unless the Trustee receives written notice from
the Company that, in the opinion of independent legal counsel to the
Company (which opinion may be based on representations of fact as
long as counsel does not know that such representations are untrue),
such a Change of Control has not occurred, a Change of Control will
be deemed to have occurred for purposes of this Agreement."
3. Section 6.1 is amended to read as follows:
"6.1 The Company shall pay any federal, state or local taxes
on the Fund, or any part thereof, and on the income therefrom. The
reasonable expenses for the management and administration of the
Trust Property, including, without limitation, reasonable expenses of
counsel and other agents employed by the Trustee and reasonable
compensation for its services as Trustee hereunder, may be paid by
the Trustee from the Trust Property to the extent not paid by the
Company. The compensation of the Trustee shall be agreed upon from
time to time by the Company and the Trustee in writing; provided,
however, that if the Trustee forwards an amended fee schedule to the
Company requesting its agreement thereto and the Company fails to
object within thirty (30) days of its receipt, the amended fee
schedule shall be deemed to be agreed upon by the Company and the
Trustee."
4. The last sentence of Section 11.4 is amended to read as
follows:
"Subject, nevertheless, to the provisions of this Agreement and to
the provisions of the Plans relating to the occurrence of a Change of
Control, any such transaction described herein shall not suspend,
accelerate or delay the rights of Plan Participants or the
beneficiaries of deceased Participants to receive benefits
hereunder."
5. The following new Article XIII is added to the Agreement:
"ARTICLE XIII
13.1 For purposes of this Agreement, a "Change of Control"
shall mean: (i) the acquisition by any individual, entity or group
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(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a "Person")
of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either 1) the then
outstanding shares of common stock of the Company (the "Outstanding
Common Stock") or 2) the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Voting
Securities"); provided, however, that for purposes of this subsection
(i), the following acquisitions shall not constitute a Change of
Control: 1) any acquisition directly from the Company, 2) any
acquisition by the Company, 3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or 4) any
acquisition by any corporation pursuant to a transaction which
complies with clauses 1), 2) and 3) of subsection (iii) of this
Article XIII; or (ii) Individuals who, as of the date hereof,
constitute the board of directors of the Company (the "Incumbent
Board") cease for any reason to constitute at least a majority of the
board of directors of the Company (the "Board"); provided, however,
that any individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of directors
or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or (iii) Consummation
of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the Company
(a "Business Combination"), in each case, unless, following such
Business Combination, 1) all or substantially all of the individuals
and entities who were the beneficial owners, respectively, of the
Outstanding Common Stock and Outstanding Voting Securities
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally in
the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns
the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to such
Business Combination of the Outstanding Common Stock and Outstanding
Voting Securities, as the case may be 2) no Person (excluding any
corporation resulting from such Business Combination or any employee
benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly
or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business Combination
and 3) at least a majority of the members of the board of directors
of the corporation resulting from such Business Combination were
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members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such
Business Combination; or (iv) Approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company."
6. Except as hereinabove modified and amended, the Agreement, as
amended, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Third amendment to
be duly executed and the respective corporate seals to be hereunto affixed
as of the date first above written.
Attest: CONNECTICUT NATURAL GAS CORPORATION
Barbara Z. Rieck By R. L. Babcock
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Its Vice President
Attest: FLEET BANK, N.A.
Jean M. Breuler By William B. Parent
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Its Vice President
STATE OF CONNECTICUT :
: ss. Sept. 13, 1995
COUNTY OF HARTFORD :
Personally appeared R.L. Babcock, Vice President, of Connecticut
Natural Gas Corporation, signer of the foregoing instrument, and
acknowledged the same to be his free act and deed as such Vice President,
and the free act and deed of said corporation, before me.
Alfred B. Lawson, Jr.
---------------------------------
Commissioner of the Superior Court
Notary Public
My Commission Expires: May 31, 1996
STATE OF CONNECTICUT :
: ss. Oct 4, 1995
COUNTY OF HARTFORD :
Personally appeared, William B. Parent, Vice President, of Fleet
Bank, N.A., as aforesaid, signer of the foregoing instrument, and
acknowledged the same to be his free act and deed as such Vice President,
and the free act and deed of said corporation, before me.
Frances A. Maslona
---------------------------------------
Notary Public
My Commission Expires: Apr. 30, 1999
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